Statute Details
- Title: Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018
- Act Code: EA1893-R1
- Legislative Type: Subsidiary Legislation (SL)
- Current Version: 2024 Revised Edition (18 December 2024)
- Original Enactment: 31 October 2018 (SL 726/2018)
- Amendments: Amended by S 257/2022 (effective 1 April 2022)
- Key Provisions: Rule 2 (definition of “sexual behaviour”); Rule 3 (restrictions on questions and evidence); Rule 4 (application for permission of court)
- Authorising Act: Evidence Act 1893 (Section 154A(…))
What Is This Legislation About?
The Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 (“the Rules”) are designed to protect alleged victims in criminal cases involving sexual offences and child abuse offences. In practical terms, the Rules limit when and how the accused may question an alleged victim about the alleged victim’s sexual behaviour or physical appearance, and when the accused may adduce evidence relating to those matters.
These restrictions reflect a policy concern that, in sexual and child abuse prosecutions, cross-examination and evidential disputes about a complainant’s sexual history or appearance can distract from the central issues—namely, whether the accused committed the offence charged. The Rules therefore create a default prohibition, subject to a court’s permission in appropriate circumstances.
Although the Rules operate within the broader framework of the Evidence Act 1893, they function as a targeted “shield” against certain lines of questioning and certain categories of evidence. They are not a blanket ban on all defence evidence; rather, they impose a gatekeeping mechanism: the accused must obtain the court’s permission before raising the restricted topics during cross-examination or by adducing related evidence.
What Are the Key Provisions?
Rule 2: Definition of “sexual behaviour”. The Rules define “sexual behaviour” in relation to an alleged victim of an offence. The definition is broad: it includes “any sexual behaviour or other sexual experience” of the alleged victim involving any person other than the accused charged with the offence. This captures not only sexual acts with third parties, but also other sexual experiences that may be argued to bear on credibility or consent.
Importantly, the definition contains an exclusion: it “excludes anything alleged to have taken place as part of the event that is the subject matter of the charge against the accused.” In other words, if the conduct is part of the charged incident itself, it is not treated as “sexual behaviour” for the purpose of the Rules. This prevents the Rules from being misused to exclude evidence that directly relates to the offence alleged, such as the complainant’s conduct during the incident that forms the basis of the charge.
Rule 3: Restrictions on questions and evidence in sexual offence or child abuse proceedings. Rule 3 applies when the accused is charged with committing either (i) a sexual offence or (ii) a child abuse offence. In those proceedings, two key restrictions apply.
(a) Cross-examination restriction. “Except with the permission of the court,” no question may be asked of the alleged victim during cross-examination by or on behalf of the accused about the alleged victim’s “sexual behaviour or physical appearance.” This is a significant procedural limitation. It means that defence counsel cannot simply decide to pursue such topics as part of credibility testing or narrative challenge; they must first obtain permission from the court.
(b) Evidence adduction restriction. Similarly, “except with the permission of the court,” no evidence may be adduced by or on behalf of the accused about the alleged victim’s “sexual behaviour or physical appearance.” This covers not only testimony from witnesses, but also documentary or other evidential materials that would be introduced to address those restricted topics.
Practically, Rule 3 creates a default position of exclusion. The defence must therefore plan early: if the defence intends to rely on sexual history, sexual experiences with third parties, or evidence about physical appearance (for example, appearance that is argued to be relevant to consent, credibility, or plausibility), it must be prepared to make an application for permission.
Rule 4: Application for permission of court. Rule 4 sets out the procedure for obtaining permission under Rule 3(a) and (b).
(1) Heard in the absence of the alleged victim. An application for permission is to be heard “in the absence of the alleged victim of the offence.” This is a protective procedural safeguard. It reduces the risk of further distress or intimidation for the alleged victim, and it helps maintain the integrity of the process by ensuring that the alleged victim is not present while the court considers whether restricted topics should be raised.
(2) Interests of justice test. The court may grant permission only if it “would not be in the interests of justice to disallow” the asking of the question or the adducing of the evidence. This is a nuanced standard. It is not framed as “permission shall be granted if relevant” or “permission shall be granted if necessary.” Instead, it sets a threshold that favours disallowance unless the interests of justice point away from exclusion.
For practitioners, this means that permission applications should be carefully structured. The defence should articulate why the proposed question or evidence is genuinely necessary to the issues in dispute, and why exclusion would undermine fairness. Conversely, the prosecution (or the court, depending on practice) will typically emphasise the protective purpose of the Rules and the risk of prejudice, distraction, or unfair characterisation of the alleged victim.
How Is This Legislation Structured?
The Rules are concise and structured around four provisions.
Rule 1 (Citation) provides the short title of the Rules.
Rule 2 (Definition of “sexual behaviour”) establishes the scope of the key term, including both an inclusive definition and an exclusion for conduct that forms part of the charged event.
Rule 3 (Restrictions on questions and evidence) sets out the operative restrictions. It specifies the proceedings to which the Rules apply (sexual offence and child abuse offence cases) and the two restricted contexts: (i) cross-examination of the alleged victim and (ii) adduction of evidence by or on behalf of the accused.
Rule 4 (Application for permission) provides the procedural mechanism and the legal test for granting permission. It also includes the important safeguard that the application is heard without the alleged victim present.
Who Does This Legislation Apply To?
The Rules apply to criminal proceedings where the accused is charged with committing either a sexual offence or a child abuse offence. The restrictions are directed at the conduct of the accused’s case, specifically the accused’s counsel and any evidence introduced “by or on behalf of the accused.”
The Rules focus on the alleged victim of the offence. The definition in Rule 2 is tied to “an alleged victim,” meaning the protections are triggered from the standpoint of the person said to have been harmed by the alleged criminal conduct, even before guilt is determined.
Why Is This Legislation Important?
These Rules are important because they directly affect how sexual and child abuse trials are conducted. They constrain defence strategies that rely on the alleged victim’s sexual history or appearance, unless the court permits it. This can materially change the evidential landscape of a case, including what topics are explored in cross-examination and what materials are introduced at trial.
From a fairness and justice perspective, the Rules aim to balance two competing concerns: (1) the accused’s right to a fair trial and to challenge the prosecution’s case, and (2) the need to prevent unfair prejudice and unnecessary humiliation of alleged victims. The “permission” model is central to that balance. It does not eliminate the defence’s ability to raise relevant issues; rather, it requires the defence to justify why restricted topics should be allowed in the interests of justice.
For practitioners, the Rules create both procedural obligations and strategic considerations. Procedurally, counsel must anticipate whether proposed cross-examination or evidence will fall within “sexual behaviour” or “physical appearance.” If so, counsel should prepare a permission application in advance, mindful that it will be heard without the alleged victim present. Strategically, counsel should ensure that any application is tightly linked to the issues in dispute—such as credibility in a way that does not devolve into character attacks, or evidential necessity that cannot be met through less intrusive means.
Finally, the interests of justice test in Rule 4(2) means that permission is not automatic. Practitioners should expect the court to scrutinise whether the proposed line of questioning or evidence is genuinely required for a fair determination, or whether it risks undermining the protective purpose of the Rules by turning the trial into an inquiry into the alleged victim’s personal life.
Related Legislation
- Evidence Act 1893 (Authorising Act; including Section 154A referenced in the legislative materials)
Source Documents
This article provides an overview of the Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the official text for authoritative provisions.